Howell v Nominal Defendant

In directing the jury, Walsh J. said, in effect, that if they found that the collision was caused by the negligent driving of Burns' car they could not give a verdict against the respondent, because s. 30 (2) (a) provides a remedy only if the aggrieved party does not know before action the identity of the car which injured him. But he left it to the jury to find whether, after due inquiry and search, the identity of the grey car could be established and whether the negligent driving of that car caused the collision between the appellant's car and Black's car. The jury found a verdict for the defendant. The appellant applied to the Full Court of the Supreme Court for a new trial of the action on the ground that the directions of Walsh J. are not warranted by s. 30 (2) (a). The majority, Herron and Collins JJ., upheld the directions. Macfarlan J. was of the opinion that the direction as to Burns' car is not correct.

It is argued for the appellant that he is not deprived of the remedy under s. 30 (2) (a) because the identity of Burns' car was known to him before action; that the material matter is that he did not see that car before his car was struck from behind nor afterwards as he had been rendered unconscious by the collision with Black's car and taken to hospital. According to this argument the words "the identity of the motor vehicle" in s. 30 (2) (a) mean the identity of the person using the motor vehicle by which the aggrieved person is injured; otherwise, so the argument runs, if there are a number of motor vehicles at the scene of the accident, and he is not able to identify the motor vehicle which injured him, although he is able to identify all the motor vehicles at the scene of the accident he would have no remedy under s. 30 (2) (a). The short answer to this argument is that these provisions are not intended to provide for such a case. Indeed s. 2 (1) (c) of the Law Reform (Miscellaneous Provisions) Act, 1946 N.S.W. applies to the case postulated. The construction of the words "the identity of the motor vehicle" put forward on behalf of the appellant is at variance with a statement by the Court in the reasons for judgment in Genders v. Ajax Insurance Co. Ltd. [1] : "The Act requires that motor vehicles shall be insured so that an indemnity exists against any liability incurred by the owner or driver in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle. It establishes a presumption that the person who, at the time of the occurrence giving rise to the proceedings, was the driver of the motor car was the agent of the owner acting within the scope of his authority (s. 16). It sets up a nominal defendant who may be sued by the person injured or by the relatives of the person killed where the motor vehicle is uninsured or where the identity of the motor vehicle cannot be established" [2] .

1. (1950) 81 C.L.R. 470. 2. (1950) 81 C.L.R., at pp. 480, 481.

In my opinion the directions of Walsh J. of which the appellant complains are right. I would dismiss the appeal.

The question before us arises upon the terms of a provision contained in s. 30 (2) (a) of the Motor Vehicles (Third Party Insurance) Act, 1942-1951 N.S.W.. The provision enables a person in certain circumstances to enforce against the nominal defendant a claim for damages in respect of a death or bodily injury caused by or arising out of the use of a motor vehicle upon a public street. The claim must be one which the person "could have enforced" against the owner or driver of the motor vehicle; and in the context that clearly means could have enforced but for the fact that after due inquiry and search "the identity" of the motor vehicle cannot be established. The person's inability to establish "the identity" of the motor vehicle is therefore a condition of the operation of the provision in his case.

The question here is, what is meant in this context by not being able to establish "the identity" of the motor vehicle. Surely it means not being able to provide sufficient descriptive information about the vehicle to distinguish it from every other vehicle. If the collected information is not sufficient to exclude every vehicle in existence but one, as being the vehicle the use of which caused or gave rise to the relevant death or bodily injury, then you cannot point to any vehicle as being the one you want to identify. How can it matter whether the deficiency of information leaves unexcluded many vehicles, or a few, or only two? So long as the number of unexcluded vehicles is not reduced to one, identity is not established between, on the one hand, the vehicle which caused or gave rise to the death or injury in respect of which you desire to sue and, on the other hand, a vehicle the owner or driver of which, as such, you wish to make a defendant.

In a given case it may be that, when you have put out of consideration all vehicles which the available information excludes, those which remain are all shown to have been in the relevant vicinity at the relevant time. But in such a case, is the unresolved question any the less a question as to the identity of the vehicle that caused the damage (so to speak) than it is in the case where the unexcluded vehicles are not shown to have been in the vicinity at the time? I do not see any valid ground for saying that although the latter case falls within s. 30 (2) (a) the former case does not.

I refrain from discussing the case in greater detail, for I have had an opportunity of reading the judgment to be delivered by my brother Owen and I agree in it.

This is an appeal from the order of the Full Court of the Supreme Court of New South Wales which dismissed a motion for the new trial of an action in which the present appellant sued the nominal defendant for damages for personal injuries. His injuries were caused when the car which he was driving came into collision with a vehicle which was travelling on a public road in the opposite direction. It is not suggested that there was any negligence on the part of the driver of this vehicle; the appellant's case was that his car was struck on the rear by a following car and thereby forced against the oncoming car. One, Burns, was driving a following car and the appellant commenced an action against him alleging that his negligence had caused his injuries. But at the trial Burns' case was that his car had not in any way struck that of the appellant. According to him a grey car had overtaken his vehicle and had then cut in sharply in front of the appellant's car. But he was unable to see whether the grey car had struck that of the appellant. In the result, we are told, the jury returned a verdict for the defendant. It remains to be said at this stage that the appellant had no personal knowledge of the presence of the grey car and if, in fact, such a car was present and played some part in the sequence of events, such knowledge of it as was acquired by the appellant was acquired by him from the testimony of Burns.

It was in these circumstances that the appellant commenced his action against the nominal defendant alleging that his injuries had been caused by the negligent driving of a motor vehicle, the identity of which could not after due inquiry and search be established. It is not surprising that the declaration was taken to assert a claim against the nominal defendant based upon the negligent management of the grey car. But at the trial it was contended for the appellant that it was sufficient for him merely to show that his car had been struck negligently from behind by either the grey car or by Burns' car and that this was the cause of his injuries. In other words, lack of proof as to which car struck his car was of no consequence because, in either event, his injuries had been caused by or had arisen out of the use of a motor vehicle the identity of which could not after due inquiry and search be established.

The contention is based upon the provisions of s. 30 (2) (a) of the Motor Vehicles (Third Party Insurance) Act, 1942-1951 N.S.W.: "Where the death of or bodily injury to any person is caused by or arises out of the use of a motor vehicle upon a public street but the identity of the motor vehicle cannot after due inquiry and search be established, any person who could have enforced a claim for damages against the owner or driver of the motor vehicle in respect of the death or bodily injury may enforce against the nominal defendant the claim which he could have enforced against the owner or driver of the motor vehicle. The inquiry and search for the purpose of establishing the identity of the motor vehicle may be proved orally or by the affidavit of the person who made the inquiry and search". According to the appellant the redress provided by this section was available to him because he was, and still is, unable to establish which of the two following vehicles struck his car. In this sense, it is said, he has been unable to identify the car by or out of the use of which his injuries were caused. Nevertheless, it is clear that, although prior to the action he had been unable to establish the identity of one of the following vehicles, the identity of the vehicle which Burns was driving at the time was known to him.

The learned trial judge rejected the appellant's contention and accepted the view that the case was one in which the appellant was seeking to prove that his injuries were caused either by a motor vehicle the identity of which could not be established or by a vehicle the identity of which had been established. Accordingly, he directed the jury that they should find for the defendant unless they should come to the conclusion that the appellant's car was struck by some car other than that which Burns was driving. The Full Court, by majority, took the same view but Macfarlan J., who dissented, regarded the case as one in which the appellant was unable to establish the identity of the motor car which caused his injuries. As he expressed the relevant proposition "What the plaintiff must fail to do is, not to fail to establish the identity of a motor vehicle simpliciter, but to fail to establish the identity of a motor vehicle the use of which on a public street caused his bodily injuries " [1] . This observation, as I understand it, was intended to mean that the section applies not only to the case where a plaintiff has been injured by the negligent management of a motor vehicle unknown in the sense that the plaintiff has been unable to ascertain its identity, but also to the case where a plaintiff has been so injured by one of two known motor vehicles if he is unable, for lack of proof, to specify which of the two known vehicles caused his injuries.

1. [1962] S.R. (N.S.W.), at p. 59; (1961) 78 W.N., at p. 1061.

To my mind the falsity of this proposition may be demonstrated. As was said by Dixon C.J. in Chadwick v. Bridge [2] : "The basis of the action is the commission of a tort by an undiscovered person. Upon that basis is established a liability in a public authority because of the inability of the plaintiff to ascertain the identity of the actual tortfeasor" [1] . These observations, with which the other members of the Court agreed, proceed upon the basis that the critical words in the sub-section are concerned solely with the inability of an injured person to ascertain the identity of the motor vehicle the negligent management of which, in fact, caused his injuries. If its identity is known such claim as the plaintiff has may be asserted against the owner or driver; if its identity cannot be established after due inquiry and search the same claim may be asserted against the nominal defendant.

1. (1951) 83 C.L.R. 314. 2. (1951) 83 C.L.R., at p. 319.

I do not understand the appellant to deny any of these propositions expressly. But it is said that where a plaintiff has been injured by the negligent driving of one of two motor vehicles, both or one of which is known, and he is unable to specify which, he is in a position to assert that his injuries have been caused by or have arisen out of the use of an unidentified motor vehicle. Such a case may, of course, arise where a plaintiff, having been injured by the negligent management of one of two such vehicles, is fully aware of what are said to be the circumstances of the case and, nevertheless, is, by reason of conflicting statements as to the cause of his injuries, unable to specify where liability rests. Or, he may not be in a position successfully to assert a claim against either owner or driver simply because of lack of proof as to which vehicle has caused his injuries. But to my mind only a curious and unjustified transmutation of what I conceive to be the plain meaning of the sub-section could enable him in either case to say that his injuries had been caused by or had arisen out of the use of a motor vehicle the identity of which could not be established. What the section postulates is the existence of a motor vehicle the negligent management of which can be shown to have caused injury or death and, thereupon, inability on the part of the plaintiff to establish its identity. These are the critical matters which must be proved by a plaintiff in order that he may succeed in his claim against the nominal defendant. But the sub-section does not contemplate, or provide for, the difficulty with which a plaintiff is confronted when, having been injured by one of two motor vehicles, both or one of which is known, he is unable, by reason of lack of proof, to assert a claim successfully against either. That this is so is, I think, apparent from the terms of the sub-section itself for the claim which an injured person may enforce against the nominal defendant is the claim which he could have enforced against the owner or driver of the offending vehicle if its identity could have been established. What claim then, one may ask, does a plaintiff seek to enforce against the nominal defendant where he is unable to specify whether his injuries have resulted from the negligence of either A. or B.? It is not some abstract claim; it must be either the claim, if any, which he had in respect of the negligent management of A's car or the like claim which he had in relation to the management of B's car. And in neither case is the claim one which the plaintiff had against the owner or driver of a motor vehicle the identity of which could not be established.

Chadwick v. Bridge [1] , it should be noticed, was a case, not unlike the present, where the plaintiff was unable to specify whether his injuries had been caused by Chadwick's car or by an unknown car and the question was whether it was permissible for him, pursuant to s. 2 (1) (a) of the Law Reform (Miscellaneous Provisions) Act, 1946 N.S.W. to join Chadwick and the nominal defendant as defendants in the one action. It was held that it was, the Court agreeing that "there does not appear any reason why these causes of action should not be treated as existing in the alternative against the unknown person and the known person, the nominal defendant being placed upon the record as the person responsible if it turns out that the unknown person is the person against whom redress would be sought" [1] . If the appellant's contention here is correct then the nominal defendant in that case was liable whether the plaintiff had been injured either by the negligence of Chadwick or by the negligence of the driver of the unknown car.

1. (1951) 83 C.L.R. 314. 2. (1951) 83 C.L.R., at p. 320.

It is obvious that once the identity of a motor car has been established the identity of the owner will be established as a matter of course and no difficulty will arise in ascertaining whether the vehicle is insured or uninsured. In the former case the scheme of the Act is that liability will fall, either directly or indirectly, upon the authorized insurer; in the latter case it will fall upon the nominal defendant. But what is to happen if the identity of the motor vehicle cannot be established after due inquiry and search? It is, of course, this very circumstance with which sub-s. 2 (a) is concerned and with this in mind it is convenient to return to the language of the section. The first thing, of course, which must be noticed is that it creates a new cause of action. But it is not a cause of action "which is independently complete" subject only to a "procedural condition precedent" (per Jordan C.J. in Blandford v. Fox [2] ). It is a cause of action given to an injured person against the nominal defendant and in order to succeed the plaintiff must prove that his injuries resulted from the negligent management of a motor vehicle the identity of which after due inquiry and search he could not establish. It is a cause of action given to the injured person as a "person who could have enforced a claim for damages against the owner or driver of the motor vehicle" if he could have identified the vehicle, and his right against the nominal defendant is the right to enforce against him "the claim which he could have enforced against the owner or driver of the motor vehicle" if he had been able to identify the vehicle. Consideration of these provisions led Jordan C.J. in Blandford v. Fox [1] to observe that: "The conditions of the coming into existence of the new cause of action against the nominal defendant are - (1) there must have been death or bodily injury arising out of the use of a motor vehicle, (2) this must have occurred in such circumstances that some person could have enforced a claim for damages against the owner or driver in respect of the death or injury, (3) there must have been due inquiry and search for the purpose of identifying the motor vehicle, and (4) it must have been impossible thereby to establish its identity" [1] . With these observations I respectfully agree and make the obvious addition that in order to succeed against the nominal defendant a plaintiff must satisfy the court or a jury on each of these matters. Accordingly, in the present case, it was not open to the jury to find a verdict against the nominal defendant based upon Burns' alleged negligence for once the conclusion was reached that his negligence was the cause of the plaintiff's injuries it was obvious that the latter had failed to prove that his injuries had been caused by or had arisen out of the use of a motor vehicle the identity of which could not be established.

1. (1944) 45 S.R. (N.S.W.) 241, at p. 244; 62 W.N. 65, at p. 67. 2. (1944) 45 S.R. (N.S.W.) 241; 62 W.N. 65. 3. (1944) 45 S.R. (N.S.W.), at pp. 244, 245; 62 W.N., at p. 67.

Consideration of the sub-section leads me to the conclusion that it is concerned only to give to an injured plaintiff a right of action against the nominal defendant by way of substitution for a valueless right of action against an unidentifiable owner of a motor vehicle. But it does no more than this. It does not enable a plaintiff to succeed against the nominal defendant where, merely by reason of lack of proof on the issue of liability, he is unable to establish that an identified motor vehicle was the cause of his misfortune. That this is so is, I think, again clearly emphasized by the requirement that a plaintiff in an action against the nominal defendant must allege and prove that there has been due inquiry and search for the purpose of identifying the offending motor vehicle and that it has been impossible thereby to establish its identity. This requirement, in my opinion, is appropriate only to describe steps taken to discover the identity of a motor vehicle and is not appropriate to describe an examination of a set of circumstances in order to determine which of two identified motor vehicles have caused injuries to the plaintiff. In such a case the plaintiff may bring his action against both owners pursuant to the provisions of s. 2 of the Law Reform (Miscellaneous Provisions) Act, 1946 N.S.W.. But, of course, it would still be incumbent upon him, in order to succeed against any one of the defendants in such proceedings, to prove that his car was driven negligently and was a cause of the injuries complained of.

For these reasons the appeal should in my view be dismissed, but before parting with the case there is one further matter to which reference should be made. From what has already been said it is apparent that the claim, if any, which the plaintiff had against Burns has already been adjudicated upon. But no plea based upon this fact was raised by the respondent in the present action and no doubt this was because it was assumed that the declaration was intended to assert against the nominal defendant the claim, if any, which the appellant had against the owner of the grey car. It is however apparent that if the matter were to go back for a new trial the nominal defendant would be at liberty to plead that the appellant, at the time of action brought, had no claim against Burns since that question had already been decided. That being so, there could not on any view have been a subsisting claim against the nominal defendant based upon Burns' alleged negligence and, accordingly, the particular issue which, it is now said, should have been submitted to the jury could not be the subject of adjudication in any future trial.

This appeal turns on a nice question of language and logic. The opening words of s. 30 (2) (a) of the Motor Vehicles (Third Party Insurance) Act, 1942-1951 N.S.W. are: "Where the death of or bodily injury to any person is caused by or arises out of the use of a motor vehicle upon a public street but the identity of the motor vehicle cannot after due inquiry and search be established ". The appellant argued that this provision applies to two situations. One is where the injured man (or, if he were killed, his representative) cannot find a particular motor vehicle (or its owner or driver), known or asserted to have caused the injury or death. The other is where he cannot find out which one of several known motor vehicles it was that caused the injury or death. That both situations can be described as involving a failure to establish the identity of the vehicle responsible for the injury is, I think, the result of using the same phrase in different senses or, to put it more accurately, in reference to different identifications. The distinction, as I see it, does not depend on whether the vehicle sought for was to be selected from among many or from few. It is the distinction between, on the one hand, seeking for a vehicle identical with one already specified as, that is asserted to be, (or "identified" as) that one which caused the injury - and, on the other hand, ascertaining by investigating facts which vehicle it was that caused the injury, so that it may be so specified (or "identified"). Assume several motor vehicles to be involved in an accident when a man was knocked down: he, not knowing which vehicle hit him, may say "I cannot identify the vehicle that hit me" - or, if he does know, he may say "I identified the vehicle that hit me. It was a black Ford that drove off, but notwithstanding inquiries and search I cannot establish its identity".

I do not dispute that the phrase "the identity of the motor vehicle cannot be established" can describe both situations to which in the argument for the appellant it was thus sought to apply it. But, with respect for those who think otherwise, I cannot agree that s. 30 (2) (a) of the Act covers both. The homonymous way in which, in the argument, the language of the section was applied may not be at once apparent. And it is perhaps not readily explained in words. Yet there is, in my view, a real distinction between seeking for the thing to which a character or quality has been attributed, and seeking for a thing to which to attribute that character or quality. Read as a whole, the section, I think, applies to the first not to the second and the appellant's argument thus I consider involved an insidiously ambiguous middle term.

The declaration does not really allege what the plaintiff set out to prove at the trial. It states that the driver of "another motor vehicle" so negligently drove it that it was "forced and driven against the motor vehicle of which the plaintiff was the driver and the plaintiff was thrown out of his said motor vehicle upon the said highway". But at the trial it appeared that the plaintiff's injuries were the result of his vehicle coming into collision with the vehicle driven by Black, and that his case really was that this collision was brought about by the negligent driving of a third vehicle, not Burns' car, but another car, a grey car described as "the unidentified vehicle", which had disappeared. As the evidence was led, it seemed that the case was that this was the vehicle the identity of which could not after inquiry and search be established; and therefore that it was a cause of action that he had against the driver of this elusive vehicle that the plaintiff was prosecuting against the nominal defendant. To that situation the section properly applied. But the plaintiff said not only that its words could bear another meaning: he said that he could rely upon both meanings, so that if the jury thought that the driver of the grey car was not responsible for the accident but that Burns was, he, the plaintiff, could still recover against the nominal defendant. Walsh J. was, in my opinion, right in rejecting this contention and in his directions to the jury. I would therefore dismiss the appeal.

The appellant was the plaintiff in an action brought against the nominal defendant to recover damages for bodily injuries in which the jury returned a verdict in favour of the defendant. The Full Court of the Supreme Court, by a majority (Herron and Collins JJ., Macfarlan J. dissenting), dismissed a motion by the plaintiff for a new trial and against that order of dismissal this appeal is brought.

It appears from the evidence that the plaintiff's injuries were sustained when a car which he was driving along a public street veered across the road on to its incorrect side and there came into collision with a car being driven in the opposite direction by a man named Black. No suggestion was made that Black was guilty of any negligence in the management of his car. The case sought to be made on behalf of the plaintiff was that the course taken by his car across the road was due to the fact that another car following closely behind him or seeking to overtake him had struck the right-hand rear portion of his car causing it to get out of control, and that this impact was due to the negligence of the driver of this following or overtaking car. There was evidence upon which these findings could have been made. There was evidence also on which it could have been found that there were two cars being driven behind the plaintiff's car and in the same direction. One of them, as the plaintiff knew before he commenced this action, was being driven by a man named Burns; the other, which was described as a grey car, continued on its way and its identity and that of its owner or driver could not be and never was ascertained by the plaintiff. The plaintiff's case was that at the date of the issue of the writ he was, after making due inquiry and search, unable to say whether the car which had struck his car was the one driven by Burns or the grey car and evidence to this effect was given. In these circumstances it was contended that he was entitled to maintain an action against the nominal defendant under s. 30 (2) (a) of the Motor Vehicles (Third Party) Insurance Act, 1942-1951 N.S.W.. If this submission is correct, it seems to me to follow that it would not have been relevant at the trial to inquire which of the two cars it was that struck the rear of the plaintiff's car. His cause of action was complete when he issued his writ and if, at some later date, it appeared that it was Burns' car that had struck his car, the nominal defendant would not have been thereby relieved of liability although he would then have been in a position, under s. 32 (1) of the Act, to recover from Burns the amount of any judgment recovered against him by the plaintiff. It is necessary then to turn to s. 30 (2) (a) and consider its meaning and effect. The sub-section is in the following terms: "30. (2) (a) Where the death of or bodily injury to any person is caused by or arises out of the use of a motor vehicle upon a public street but the identity of the motor vehicle cannot after due inquiry and search be established, any person who could have enforced a claim for damages against the owner or driver of the motor vehicle in respect of the death or bodily injury may enforce against the nominal defendant the claim which he could have enforced against the owner or driver of the motor vehicle." The general purpose of the provision is clear enough. It is to provide a person who has suffered bodily injury by the negligent use of a motor vehicle upon a public street with a nominal defendant whom he may sue and from whom he may recover damages in a case in which he is unable, after making due inquiry and search, to discover the identity of the tortfeasor against whom he could have maintained an action had he been able to identify him. The sub-section speaks of inability to establish the identity of the motor vehicle the use of which has caused the bodily injury but it proceeds upon the basis that inability to identify the offending car means that the identity of the driver or owner of it cannot be established so that, but for the sub-section, the injured person would be left without remedy because he cannot find the person who is liable to be sued. In construing the sub-section I begin with the proposition, which is indisputable, that in determining whether or not a person has a right of action against another, the relevant time to which regard must be had is the moment preceding the issue of the writ. It is then that the cause of action must be complete. If it is then complete, it is irrelevant, except in special circumstances, as where a plea puis darrein continuance is raised, to point to some event occurring after the commencement of the action which if it had occurred before the issue of the writ would have prevented a cause of action arising. In an action based upon the sub-section the plaintiff must prove that he has suffered bodily injury caused by or arising out of the use of a motor vehicle upon a public street. He must also prove that he has made due inquiry and search for that motor vehicle but has been unable to establish its identity. I should perhaps add here that it is the plaintiff's inability to establish the identity of the motor vehicle to which the sub-section refers (Chadwick v. Bridge [1] ; Cavanagh v. Nominal Defendant [2] ). Finally, he must prove that if he had been able to establish its identity and thereby ascertain the identity of its owner or driver, he could have enforced a claim for damages against that owner or driver. This he may do by showing that the motor vehicle by the use of which his injuries were caused was being negligently used.

1. (1951) 83 C.L.R. 314, at pp. 318, 319. 2. (1958) 100 C.L.R. 375, at pp. 380, 388.

Applying these considerations to the present case, there was evidence which would support findings in favour of the plaintiff on all these issues. If each of these essential ingredients was found to exist, the case seems to me to fall fairly within the words of the sub-section. It would equally fall within them if the fact had been that the plaintiff had, before the writ issued, known not only the identity of Burns' car but that of the grey car provided he proved that, at that time, he was unable to establish which of the two cars had struck his car. A failure to establish the identity of a motor vehicle which causes bodily injury to a person may arise in several ways. It may arise because the circumstances are such that, although it is clear that the use of a motor vehicle caused the bodily injuries, the identity of the particular car cannot be discovered, as, for example, where no one is able to take its number or otherwise provide the plaintiff with material which enables it to be traced. This is of course the common type of case in which the sub-section is available. But a failure to identify a motor vehicle which has caused bodily injuries equally arises if, after due inquiry and search, the plaintiff cannot establish which one of several cars, the identity of each of which is at all times known to him, in fact caused the injuries. A person cannot establish the identity of his assailant if he says, and the fact is, that "A and B were the only persons standing behind me. Each of them carried an axe and I was hit on the back of the head with an axe but I cannot say which of them struck me". It is true that if he sued A for assault he would fail, equally so if he sued B. If, however, he had been able to identify which of the two had attacked him he could have maintained an action against the wrongdoer. Section 30 (2) (a) is, of course, not dealing with axes but with motor vehicles but one of its purposes, as it seems to me, is to ensure that an injured person shall not be left without remedy merely because after due inquiry and search he cannot establish whether it was A or B who negligently or, for that matter, intentionally hit him with a motor car. I should here add that during the trial it emerged that, prior to the commencement of the present action, the plaintiff had sued Burns but had lost the case, whether because he failed to establish that it was Burns' car that had hit his car or for some other reason did not appear. No question of estoppel was raised and the learned trial judge rightly told the jury to disregard the fact that the action against Burns had failed. The only possible relevance that this piece of evidence could have had would be if it had tended to disprove the plaintiff's claim that, at the date of the writ in this action, he was unable to establish the identity of the car which had run into the rear of his car and no attempt was made to use it for this purpose.

For these reasons I am unable to agree with the decision of the majority of the Full Court. It follows that I am of opinion that the order dismissing the new trial motion should be set aside and that in its place an order should be made setting aside the verdict and ordering a new trial. A new trial is necessary because the learned trial judge directed the jury that if they thought that it was the car driven by Burns that struck the rear of the plaintiff's car they should find a verdict for the nominal defendant. For the reasons I have given I think his Honour fell into error. The fact, if it was a fact, that it was Bruns' car and not the grey car that struck the plaintiff's car does not seem to me to have been a relevant consideration if it was shown that, immediately before action brought the plaintiff, after due inquiry and search, was unable to establish which car it was. If this fact was proved along with the other facts which were necessary to enable the plaintiff to bring himself within the sub-section he was entitled to a verdict. If that fact was not proved, his claim against the nominal defendant would wholly fail because his case was not that his car was struck by the grey car which could not thereafter be identified. The inability to identify the offending car upon which he relied was an inability to establish which of the two cars it was that had negligently collided with the rear of his car and thus caused him to collide with the car driven by Black.